So, Who Can We Kill?

Fordham University in Time, April 01, 2013

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Budget politics was topic a when President Obama met privately with Democratic Senators on Capitol Hill on March 12. But some of the President's hosts were determined to raise another issue: drones. Why, Senator Jay Rockefeller asked, was the White House refusing to show Congress legal memos justifying its drone campaign, including the killing of U.S. citizens overseas? Three Democratic Senators had been disturbed enough by the secrecy to cast protest votes against the confirmation of Obama's new CIA director, John Brennan. Another Democrat, Ron Wyden of Oregon, even joined Republican Senator Rand Paul's epic 13-hour filibuster the week before, in which Paul demanded--and later received--an assurance that Obama would not use drones to kill noncombatant Americans on U.S. soil. According to Politico, it was enough to make Obama defend himself in bracing terms. "This is not Dick Cheney we're talking about here," he pleaded.

But in political terms, it's getting hard to tell the difference. During the 2012 campaign, Obama's use of drones to kill terrorists without risking the lives of U.S. troops was a bragging point. But in the months since, his drone war has turned from asset to headache. Paul's filibuster, which ignited Twitter and made Paul a celebrity at this month's Conservative Political Action Conference (CPAC), was just the crescendo of a growing chorus of complaints that have united left and right. (After his filibuster, Paul was given chocolates and flowers and serenaded by the left-wing antiwar group Code Pink.) Speaking at Fordham University on March 18, Jeh Johnson, who stepped down in December as the Pentagon's chief counsel, warned that Obama's targeted-killing program risks "an erosion of support."

Now Washington is rethinking some of its basic assumptions about the drone war. Congress and the White House are discussing ways to bring new legal clarity to targeted killing. And Obama, moved by the complaints about secrecy, is said to be planning public remarks on the subject soon. "I do think the Administration is feeling some anxiety about this," says Rosa Brooks, a former Pentagon official under Obama. "Over the last year, the shift in discourse on targeted killings has had an impact on some of the more thoughtful people in the Administration."

A War in the Shadows

"A decade of war is now ending," Obama declared in his January Inaugural Address. The line referred to the U.S.'s departure from Iraq and Afghanistan. But a different sort of war carries on. The same day Obama spoke, a drone-launched Hellfire missile killed three suspected militants in Yemen. It was the third such strike in three days. In 2012, U.S. drones launched 48 known strikes in Pakistan and dozens more in Yemen and Somalia. And while American troops may be tearing down outposts in Afghanistan, the U.S. has recently opened or enlarged drone bases in Saudi Arabia, Djibouti and Niger. The last of those has supported French forces who stormed Mali in January to drive out Islamists there--meaning that Obama has extended the fight against al-Qaeda all the way to Timbuktu.

The Administration says it's simply meeting the threat. Yes, Osama bin Laden sleeps with the fishes, and al-Qaeda's core leadership in Pakistan probably can't carry out "complex, large-scale attacks in the West," National Intelligence Director James Clapper warned Congress on March 12, but its offspring pose a deadly threat. Al-Qaeda's Yemeni branch, which has nearly hit the U.S. more than once, still aspires to do so. And al-Qaeda fighters in northern Africa, under the rubric of al-Qaeda in the Islamic Maghreb, may want to pull off attacks on Western targets in the region similar to the deadly September assault on a U.S. compound in Benghazi, Libya. "Absent more effective and sustained activities to disrupt them, some regional affiliates--particularly al-Qaeda in the Arabian Peninsula and al-Shabab in Somalia--probably will grow stronger," Clapper warned.

Those activities probably include drone strikes. But one reason Obama's drone campaign is under pressure is that it is increasingly straining against its legal authority. The legal basis for Obama's targeted-killing operations (which can also involve strikes from manned airplanes, among other tactics) is the 2001 Authorization for Use of Military Force (AUMF), a law passed by Congress three days after 9/11. The AUMF was as broad in meaning as it was concise in language--a 395-word measure whose key passage empowered the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the Sept. 11 attacks.

For years, only a handful of critics questioned whether the drone campaign begun by George W. Bush and Cheney and accelerated by Obama was operating outside the law. Now members of Congress and legal scholars are asking whether it makes sense for U.S. counterterrorism policy to be guided by language hastily drafted as the wreckage of the World Trade Center still burned. "I believe most everybody thought--certainly I thought--it was limited in time and space," says Jane Harman, a former Democratic Congresswoman from California with expertise in intelligence issues. "I never imagined it would be around 12 years later." In a speech last year, Johnson warned that the law "should not be interpreted to mean ... that we can use military force whenever we want, wherever we want."

But sometimes that's how it looks. In recent years, Administration lawyers have decreed that international law permits the U.S. to target "associated forces" of al-Qaeda. That has allowed for strikes against a broad range of individuals, most of whom have no real connection to the Sept. 11 attacks and may not even openly threaten the U.S. In some cases, U.S. drone strikes have targeted militants in Pakistan and Yemen who mainly threatened the governments of those countries. As Brooks puts it, "The enemy is inchoate and expanding ... We've gotten further and further from any sense of what, exactly, is the threat."

A new AUMF would clarify, both legally and politically, whom we should be killing and why. It might also help reassure other nations that the U.S. has some sense of limits. Legal debates aside, a big practical problem with the drone war is that the rest of the world hates it. Drone strikes and the unintended deaths of innocents they sometimes cause have fanned severe anti-Americanism in places like Pakistan. (One would-be terrorist, Faisal Shahzad, who was plotting to bomb New York City in 2010, even cited U.S. drone strikes as a motivator.) A 2012 Pew Research Center poll of international opinion found that American drone strikes are deeply unpopular around the world, not only in Muslim countries but also in such nations as Germany, Russia, Japan and China. "We're losing the argument," Harman says. In January, a U.N. special investigator from Britain kicked off a nine-month official inquiry into U.S. drone strikes to determine "whether there is a plausible allegation of unlawful killing."

In the U.S., Obama's biggest political problem may be secrecy. By treating the drone campaign as a state secret, the White House has invited broad suspicion and paranoid scenarios, like the casual killing of Americans at home. It was only last year that Obama publicly acknowledged the program's existence, and on March 15 a federal appeals court rebuked the CIA for not admitting its own role in it. (The CIA operates its own drone fleet--independent of the Pentagon's--which mostly targets suspected militants in Pakistan.) In January, another federal judge ruled that the White House could invoke unspecified national-security reasons to withhold opinions on targeted killing written by the Justice Department's Office of Legal Counsel. But the clearly frustrated judge lamented the "Alice in Wonderland" nature of the situation. "The Obama Administration is wrong to withhold these documents from Congress and the American people," former Clinton White House chief of staff John Podesta wrote in a March 13 Washington Post op-ed. "Give them up, Mr. President."

Kill Lists and Drone Courts

Last spring, the New York Times published a front-page story detailing Obama's role in his drone war. Obama would often personally approve names of terrorism suspects added to a "kill list" compiled by officials from various agencies. The strikes are then carried out by drones operated by the military. (The CIA generally makes its own targeted-killing decisions.)

The story, with which several top officials cooperated, revealed the depth of Obama's involvement in a vigorous fight against terrorists. It seemed like a convenient election-year narrative, but it may have backfired. Top aides soon became uncomfortable about commentary describing the President as a kind of imperial executioner. Some of them, including Brennan and new White House chief of staff Denis McDonough, formerly a top national-security staffer, had already been wrangling at length with the legal, moral and practical implications of the drone war. That was one reason Brennan led a multiagency effort in 2012 to compile standards and procedures for drone strikes into a formal rule book, which he dubbed the "playbook," according to the Washington Post.

While Brennan's playbook might seem like an effort to rein in the drone war, it also indicates that the high-tech-killing scheme is here to stay. The playbook "suggests not that [the drone war] is ending but that it's being regularized and bureaucratized," says Jack Goldsmith, a former Bush Administration Justice Department lawyer now at Harvard Law School.

That doesn't mean there won't be changes. Prominent members of Congress, including Senate Intelligence Committee chairwoman Dianne Feinstein, have discussed the possibility of setting up a "drone court," modeled on the judicial panel that approves wiretaps of domestic-terrorism suspects, that would ensure that no single person has the authority to authorize killings without some oversight. Former Defense Secretary Robert Gates, a Republican and George W. Bush appointee, is among those promoting the idea. "I just think some check on the ability of the President to do this has merit as we look to the longer-term future," Gates told CNN last month.

Having judges approve killing requests would hardly be a cure-all, however. National-security officials worry about looping a judge into military operations often based on fast-changing facts on the ground (and both the military and the State Department have lawyers, like Johnson, who already closely vet such requests).

Obama could also seek--or Congress could hand him--a renewed AUMF more clearly stating the mission, and enemy, in the antiterrorism war for the post-Afghanistan era. But that, too, could be fraught, involving an unpredictable process that, as someone familiar with the thinking of Administration officials puts it, "quickly becomes emotional and politicized. The extreme right and the extreme left have now converged on these issues, and they will team up." Others worry about just the opposite--that hawks like John McCain might seize control of the process and grant the President even broader new terrorist-hunting powers. "Proposing a new AUMF carries very significant risks," says Matthew Waxman, a former Bush Administration national-security official now at Columbia Law School, adding, "There would also be major risks to using force against other terrorist groups without a clear legislative basis."

How Obama feels about all this remains unclear, though we may know more soon. Attorney General Eric Holder recently told Senators that Obama will speak publicly on targeted-killing operations. A White House spokesperson declined to offer details but pointed to the President's State of the Union address, in which he vowed to work with Congress "to ensure ... that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances" and to make "our efforts ... even more transparent to the American people and to the world."

Mend It or End It?

Of course, it might seem easier to simply wind down the drone war entirely. When he departed the Pentagon counsel's office last year, Johnson caused a stir with an exit speech that envisioned a "tipping point" at which America might declare the war on al-Qaeda over. After that, the U.S. might lean more on regional allies to round up (or kill) terrorism suspects and turn to traditional criminal-justice methods to pursue terrorist operatives. Some found support for this scenario in the Administration's recent decision to arraign bin Laden's captured son-in-law in a Manhattan court rather than send him to the Guantánamo Bay prison camp. As a 2008 candidate, Obama repeatedly vowed to close Gitmo, but resistance from Congress stymied him. "It's not a forgotten issue," says one Administration official.

It may also be notable--and surprising--that the pace of drone strikes has slowed. The 48 strikes in Pakistan last year were less than half the 2010 total, which, according to the New America Foundation, was 122. There have been no strikes in Yemen since Feb. 1 of this year. Whether that's a breather or a strategic shift remains to be seen. It probably also depends on how successful African forces are at fighting al-Qaeda when French troops withdraw from Mali in April. Northern Africa could be an inflection point for Obama to choose between a renewed killing campaign--one that might require new legal authority--or a less kinetic effort that relies on a combination of indigenous forces, foreign aid and arrests instead of guided missiles.

Meanwhile, the domestic debate seems sure to rage on. At the CPAC conference five years ago, Cheney thrilled the conservative crowd with a speech that made no apologies for the remorseless approach he and Bush had taken toward the war on terrorism. "Would I support those same decisions today? You're damn right I would," Cheney said, to roaring applause.

Five years later, the CPAC crowd had found a new hero in Rand Paul. "No one person gets to decide the law," Paul declared. "If we allow one man to charge Americans as enemy combatants and indefinitely detain or drone them, then what exactly is it that our brave young men and women are fighting for?" For the moment, at least, Obama might not mind having Cheney rejoin the political debate.